Expedited Removal

What is Expedited Removal?

Expedited removal is the process by which a non-U.S. citizen can be denied entry and physically removed from a U.S. Port of Entry (“POE”) upon seeking admission to the United States. Orders of expedited removal are issued by U.S. Customs and Border Protection (“CBP”) officials at a POE. The expedited removal process can only be used in certain situations when CBP officers have determined that an individual is inadmissible for one, or a combination of, the following reasons:

Fraud or misrepresentation [INA Section 212(a)(6)(C)(i)];

Falsely claiming U.S. citizenship [INA Section 212(a)(6)(C)(ii)];

An intending immigrant who is not in possession of a valid unexpired immigrant visa or other suitable entry document [INA Section 212(a)(7)(A)(i)(I)];

A nonimmigrant who is not in possession of a passport valid for a minimum of six (6) months from the date of the expiration of the initial period of stay [INA Section 212(a)(7)(A)(i)(II)(i)]; or

A nonimmigrant who is not in possession of a valid nonimmigrant visa or border crossing card at the time of application for admission [INA Section 212(a)(7)(A)(i)(II)(ii)].

Most expedited orders that are seen in our office involve some type of fraud or misrepresentation charge. On occasion, we do see expedited orders issued on Section 212(a)(7) grounds only.

Individuals facing expedited removal do not have a right to counsel or to a hearing before an immigration judge. CBP officials at the U.S. POE conduct the expedited removal process completely and exclusively. The process is usually completed within a matter of hours.

Expedited removal carries a five (5) year bar to re-entering the U.S. This means that individuals issued orders of expedited removal cannot re-enter the U.S. for a minimum period of five (5) years from the date of expedited removal unless they apply for and are granted permission to reapply for admission to the U.S. (Form I-212).

If the basis of the expedited removal falls under INA § 212(a)(6)(C), then a lifetime bar to entryalso applies. Individuals in this situation will require permission to reapply (I-212) plus the appropriate fraud waiver to enter the U.S. within five (5) years of the expedited removal order.

Can I Appeal an Order of Expedited Removal?

The short answer is no – orders of expedited removal are not reviewable by any judge or court. There is no appeal process for such orders.

It is possible, however, to submit a request for review to CBP directly, which is what our office has done in situations where we have determined that the expedited removal order was improperly issued. In such situations – where the immigration laws were improperly applied by the CBP officials at the POE – review by additional supervisory CBP officials has resulted in the order of expedited removal being vacated as if it was never issued.

Where Does CBP Derive its Authority to Issue Orders of Expedited Removal?

CBP’s authority to issue orders of expedited removal is provided for by federal law. Congress granted the expedited removal authority to CBP in 1997. Specifically, Section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which took effect April 1, 1997, amended Section 235(b) of the INA to authorize the expedited removal of aliens.

What was the Congressional Intent Behind the Expedited Removal Provision of IIRIRA?

IIRIRA, including the expedited removal provision, was proposed in response to significant concerns about illegal immigration. Congress wanted to prevent and combat the surreptitious entry of undocumented aliens and the easy availability of fraudulent documents. See Cong. Rec. H2378-2380 (March 19, 1996) (statement of Rep. Hyde). IIRIRA sought to address and fix such problems, in part by creating the process of expedited removal. The stated purpose of IIRIRA was:

[F]irst, to increase control over immigration to the United States—decreasing the number of persons becoming part of the U.S. population in violation of this country’s immigration law (through visa overstay as well as illegal entry); expediting the removal of excludable and deportable aliens, especially criminal aliens; and reducing the abuse of parole and asylum provisions.

S. Rep. No. 104-249 (April 10, 1996) (emphasis added).

The specific expedited removal provision of IIRIRA was actually created for the purposes of deterring the use of fraudulent documents, providing a greater punishment for the use of fraudulent documents, and combating the abuse of asylum in the U.S. As stated by IIRIRA co-sponsor, Senator Alan Simpson, IIRIRA “is about new penalties for those who use or alter or make fraudulent documents.” Cong. Rec. S11711 (September 28, 1996) (statement of Sen. Simpson). Senator Simpson went on to specifically talk about expedited removal, stating:

There is a system of expedited removal which should curb the abuse of our asylum system while still providing a hearing for an immigration judge to those who make an asylum claim.

It will create an expedited removal process, so that those who seek to enter the United States surreptitiously or with fraudulent documents can be promptly deported and not allowed to stay here for years while pursuing various frivolous appeals at all levels and in all forums, administrative and judicial.

The Congressional intent of IIRIRA and, more specifically, of section 302 as it relates to expedited removal, was to combat, prevent, and deter the entry of illegal aliens to the United States by fraud and/or surreptitious means. Further, it was equally Congress’s intent that the new process of expedited removal would deter and prevent the abuse of our asylum system by aliens who would file frivolous asylum claims for the sole purpose of gaining entry and permission to work in the U.S. while their cases remained pending in the courts, sometimes for years.

When creating regulations relating to expedited removal, the U.S. Department of Justice, legacy Immigration and Naturalization Service (“INS”) expressed concern that individuals who may be inadvertently or unintentionally in violation of the immigration laws or regulations should not be subject to the harsh consequences of a formal expedited removal order. 62 Fed. Reg. 10313 (March 6, 1997). Therefore, legacy INS expressed its intent to formulate policy guidance and criteria for determining the types of cases in which other discretionary forms of relief should be considered rather than expedited removal. See 62 Fed. Reg. 10313 (March 6, 1997).

Thereafter, the legacy INS was dissolved and replaced with the U.S. Department of Homeland Security. As the agency charged with conducting immigration inspections at U.S. borders and ports of entry, U.S. Customs and Border Protection (“CBP”) became the agency with the expedited removal authority. As such, CBP issued guidance to its officers regarding the expedited removal process in its Inspector’s Field Manual.

The CBP Inspector’s Field Manual (“IFM”) advises officers that “the authority to formally order an alien removed from the U.S. without a hearing or review carries with it the responsibility to accurately and properly apply the grounds of inadmissibility.” IFM, Chapter 17.15(a)(2). Officers are instructed to only charge those grounds of inadmissibility that can be fully supported by the evidence and to consider, on a case-by-case basis, whether the individual is deserving of any appropriate waivers, withdrawal of application for admission, or deferred inspection to resolve the ground of inadmissibility rather than an order of expedited removal. IFM, Chapter 17.15(a)(2).

What Should I Know About Expedited Removal?

Most people are not aware that, despite a finding of inadmissibility under INA Sections 212(a)(6)(C) and/or (7)(A), CBP does not have to issue you an order of expedited removal. Rather, CBP officers have the discretion to permit you to withdraw your application for admission. They may also consider any applicable waivers, or in some cases they may defer your inspection to allow you additional time to present the required entry documentation.

Individuals facing expedited removal should also be aware that by regulation CBP must create a detailed record of proceedings containing the facts of the case and statements made by the person being removed. The individual being removed must be advised of the charges against him/her and given an opportunity to respond to those charges in a sworn statement. See 8 C.F.R. § 235.3(b)(2)(i).

If an individual subject to expedited removal indicates to CBP officers that s/he intends to apply for asylum in the United States, or expresses a fear of persecution or torture or a fear of return to his/her home country, then CBP must not proceed any further with the removal of that individual, but refer him/her to an asylum officer for a credible fear determination. Pending a credible fear determination, however, individuals will be subject to mandatory detention. In some situations, individuals can wait several weeks for their credible fear interview and determination, as asylum officers are not present in all detention locations. In these situations, individuals can wait several weeks in detention for an asylum officer to travel to the detention facility to conduct the credible fear interview.

Although an order of expedited removal in and of itself carries a five (5) year bar to returning to the U.S., if an individual is expedited removed on grounds of fraud/misrepresentation or false claim to citizenship, s/he is actually inadmissible to the U.S. for life.

What Can I Do If I Was Issued an Order of Expedited Removal That I Believe was Issued in Error?

Consider consulting with an attorney who can review the details of your particular case. Upon review, an experienced lawyer will be able to advise you as to whether the expedited removal order was properly issued or whether it was issued in error and is therefore worth challenging.

If review of all the facts and circumstances of your case reveals that the order of expedited removal was improper, the first step is to approach CBP officials at the Port of Entry where the expedited order was issued. Every POE is different but most will agree to accept a formal written submission challenging the order of expedited removal. Our office prepares a comprehensive legal brief in support of the request to vacate the order of expedited removal, which we submit to CBP together with any relevant supporting documentary evidence.

What Strategies are Used to Challenge Orders of Expedited Removal?

In some cases, the order of expedited removal is challenged on the basis that CBP improperly applied the underlying ground of inadmissibility. For example, if an individual was telling the truth, an order of expedited removal based on a charge of fraud cannot be sustained.

In other cases, even though the individual may have been inadmissible as charged, the order of expedited removal can still be challenged as inconsistent with Congressional and agency intent.

Our office has been successful challenging and vacating orders of expedited removal in both types of cases.